Texas Intern. Airlines v. Wits Air Freight

Citation608 S.W.2d 828
Decision Date21 November 1980
Docket NumberNo. 20398,20398
PartiesTEXAS INTERNATIONAL AIRLINES, Appellant, v. WITS AIR FREIGHT, Appellee.
CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas

Patrick F. McGowan, Kevin H. Good, Dallas, for appellant.

John R. Henderson, Meyers, Miller, Middleton, Weiner & Warren, Dallas, for appellee.

Before AKIN, CARVER and STOREY, JJ.

STOREY, Justice.

This is a summary judgment case. The suit is upon an airbill, the front side of which was introduced as a part of plaintiff's summary judgment proof. The front side of the airbill contains recitations to the effect that conditions of the contract appear on its reverse side. The reverse side was not offered as summary judgment proof. The question is whether plaintiff Wits Air Freight, the movant, in omitting the reverse side of the airbill has failed to prove all essential elements of its cause of action; or, on the other hand, whether Texas International Airlines, the non-movant, had the burden to present the omitted part of the airbill as a matter in avoidance. We conclude that, under the circumstances of this case, the burden remained with plaintiff as moving party either to introduce every part of the contract which might contain conditions precedent to recovery and to establish factually its compliance with the conditions, or to plead performance of all conditions precedent pursuant to Tex.R.Civ.P. 54. Because plaintiff accomplished neither of these alternatives, we reverse and remand.

The facts are undisputed. Plaintiff delivered a package of horological instruments to defendant, a common carrier by air, in Salt Lake City, Utah, and received an airbill to be used to reclaim the package upon delivery in Boston, Massachusetts. Defendant delivered the package safely to another carrier in Denver, Colorado, and the package was lost. Plaintiff's claim is for the declared value of the package, and in its motion for summary judgment plaintiff introduced as evidence only the front side of the airbill as part of its summary judgment proof. The front side of the airbill contained the recitation "Conditions of the Contract appear on the back of the Airbill." Defendant excepted to plaintiff's summary judgment evidence stating that the entire contract was not before the court, and urged that the recitation on the face of the airbill incorporated the reverse side as a portion of the contract which the plaintiff had the burden to present to the trial court. Defendant also urged that plaintiff had failed to sustain its burden of proving up the entire contract by failing to introduce a tariff filed before the Civil Aeronautics Board. This appeal results from the trial court's grant of plaintiff's motion for summary judgment.

Both parties recognize the rule in summary judgment practice to be that the movant must establish its entitlement by proving all elements of its cause of action and that the non-movant must present by proper summary judgment evidence all matters in avoidance of the movant's entitlement. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). The point of disagreement is whether plaintiff or defendant had the burden of presenting the reverse side of the airbill to the trial court. No authority has been cited nor has our search revealed authority directly in point, but both parties analogize the instant case to cases dealing with group life insurance policies. Appellant relies on Wann v. Metropolitan Life Ins. Co., 41 S.W.2d 50 (Tex.Comm'n App.1931, holdings approved), where a group insurance contract was evidenced solely by introduction of the certificate of insurance issued to the individual insured and no attempt was made to introduce the policy or to prove its contents. Despite the fact that the certificate appeared to be complete in its terms, the court reversed because the certificate expressly stated that it was subject to the terms and conditions of the group life policy. As stated by the court:

It is argued that the certificate ... issued to Wann was so complete in its terms that it was not essential for him to establish the provisions of the group policy. The parties to this contract expressly agreed that plaintiff in error was insured subject to the terms and conditions of the group policy. However complete the terms of the certificate may appear to be, the fact remains that the parties agreed it should be subject to the terms and conditions of another instrument. In the face of such an agreement plaintiff in error had no right, without the consent of the insurance company, to change this contract so as to entitle him to recover without regard to the terms and conditions of the policy expressly made a part of the contract. The terms of the certificate may have been materially modified by stipulations contained in the group policy.

See also Davis v. Tennessee Life Ins. Co., 562 S.W.2d 868 (Tex.Civ.App.-Houston (1st Dist.) 1978, writ ref'd n. r. e.); cf. Terrazas v. Sullivan, 470 S.W.2d 904 (Tex.Civ.App.-El Paso 1971, writ ref'd n. r. e.) (court reversed summary judgment because of movant's failure to establish every material exchange between parties to oral contract).

Appellee, however, relies upon cases such as Ramsey v. Wahl, 235 S.W. 838 (Tex.Comm'n App.1921, judgmt. adopted), and Randolph Junior College v. Isaacks, 113 S.W.2d 628 (Tex.Civ.App.-Eastland 1938, no writ), for the proposition that, in a suit for the breach of a written contract, it is necessary to allege correctly all the provisions of the...

To continue reading

Request your trial
11 cases
  • Greathouse v. Charter Nat. Bank-Southwest
    • United States
    • Texas Supreme Court
    • July 1, 1992
    ...1988, writ denied); B C & S Constr., Inc. v. Action Elec. Co., 753 S.W.2d 841 (Tex.App.--Fort Worth 1988, no writ); Texas Int'l Airlines v. Wits Air Freight, 608 S.W.2d 828 (Tex.Civ.App.--Dallas 1980, no writ); Southwestern Assoc. Tel. Co. v. City of Dalhart, 254 S.W.2d 819 (Tex.Civ.App.--A......
  • Beard Family Part. v. Commercial Indem.
    • United States
    • Texas Court of Appeals
    • August 29, 2003
    ...contains conditions precedent, there must be some allegation by the plaintiff that the conditions have been met. Texas Int'l Airlines v. Wits Air Freight, 608 S.W.2d 828, 831 (Tex.Civ.App.-Dallas 1980, no writ). Texas Rule of Civil Procedure 54 In pleading the performance or occurrence of c......
  • Wheeler v. White
    • United States
    • Texas Court of Appeals
    • May 6, 2010
    ...to, and not merely cumulative of, terms and conditions found in another instrument, both must be introduced. See Tex. Int'l Airlines v. Wits Air Freight, 608 S.W.2d 828, 830 (Tex.Civ.App.-Dallas 1980, no The circumstances of the present case are readily distinguishable from those faced in C......
  • Trevino v. Allstate Ins. Co.
    • United States
    • Texas Court of Appeals
    • January 25, 1983
    ...precedent and the defendant fails to deny specifically performance of the conditions, as required by rule 54. Texas International Airlines v. Wits Air Freight, 608 S.W.2d 828 (Tex.Civ.App.--Dallas 1980, no writ); City of Galveston v. Shu, 607 S.W.2d 942, 945 (Tex.Civ.App.--Houston [1st Dist......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT